Board of Immigration Appeals Allows Noncitizens to Overcome Inadmissibility Without Leaving the US

The Board of Immigration Appeals (BIA) has announced a significant decision regarding noncitizens who have been deemed inadmissible to the United States due to their unlawful presence and subsequent departure. According to the BIA’s decision, noncitizens who are inadmissible for a specified period of time pursuant to section 212(a)(9)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i), will no longer be required to reside outside the United States during this period in order to overcome this ground of inadmissibility.

This decision marks a departure from the previous policy, which required noncitizens to reside outside the country during their period of inadmissibility before they could apply to have their status lifted. The BIA’s decision is expected to make it easier for noncitizens to overcome their inadmissibility status and return to the United States. It also reflects a more humane and fair approach to immigration.

The BIA’s decision was made after a noncitizen appealed their inadmissibility status, arguing that the requirement to reside outside the country was causing undue hardship. The BIA ultimately agreed with the noncitizen, stating that the language of the Immigration and Nationality Act did not explicitly require a noncitizen to be physically present outside the United States during their period of inadmissibility.

The ruling came in response to an appeal by Jorge Alberto Duarte-Gonzalez, a Mexican citizen who was denied adjustment of status under section 245(a) of the Immigration and Nationality Act.

Duarte-Gonzalez had been admitted to the U.S. in June 2000 and authorized to stay for a temporary period not exceeding 30 days. However, he did not depart the country until August 2001. Since his subsequent admission in August 2001, he had remained in the country without any further authorization to remain. He was subsequently charged with removal from the United States under section 237(a)(1)(B) of the INA.

The Board of Immigration Appeals considered whether Duarte-Gonzalez was eligible for adjustment of status under section 245(a) of the INA, based on his United States citizen son filing a visa petition for his benefit. The Board ultimately concluded that he was eligible, despite not having remained outside of the United States during the entire 10-year period of inadmissibility.

The decision is binding on all immigration judges and officials within the Department of Homeland Security. It is expected to have a significant impact on the immigration system and the lives of noncitizens seeking to overcome their inadmissibility status.